An Augusta man is asking the state’s highest court to throw out his conviction for possession of child pornography,

Randy Marquis, 44, of Augusta, was convicted March 23, 2017, of three counts of possession of sexually explicit materials depicting children under 12 — specifically two separate images and one video — on the computer in his Northern Avenue home. The state maintained he had the images on Jan. 16, 2015, the day officers came to his home to question him.

RANDY MARQUIS

Marquis was sentenced in April 2017 to an initial six months behind bars, and the remainder of the three-year term was suspended while he spends two years on probation. He is currently on probation.

Marquis, through his attorney, Scott Hess, appealed his the conviction to the Maine Supreme Judicial Court, which heard oral arguments in the case Thursday at the Cumberland County Courthouse.

Hess on Thursday concentrated his oral argument on whether the investigators had consent to enter Marquis’ home. A judge ruled earlier that Marquis had “acquiesced” to their entrance, so the evidence obtained could be used at the trial.

“Mr. Marquis ‘didn’t invite them in or lead them in,’” Hess told the justices.

Chief Justice Leigh Saufley asked, “Why does it matter whether there was a consent to enter?”

She noted that Marquis gave the officers consent to look at his computer.

Associate Justice Joseph Jabar also asked, “How does it impact consent to search the computer?”

“Anything that happened after the entry of the home is fruit of the poisonous tree,” Hess said. That refers to evidence obtained by a illegal search, which then would be unusable at trial.

Hess said, “There has to be an affirmative measure of consent.”

Associate Justice Thomas Humphrey and noted on the audio recording, Maine State Police Detective Justin Kittredge told Marquis many times, “I don’t have a warrant. You don’t have to let me do this.”

Assistant District Attorney Frayla Tarpinian, who was also the prosecutor at the trial, maintained that rulings in the case were proper and the conviction on the three charges should stand.

Tarpinian told the justices that the entire encounter from January 2014 is recorded on an audio tape. She said shortly after the three state police investigators enter the house, Marquis says he knows about the child pornography and “leads them to the computer; he manipulates the mouse.”

Associate Justice Ellen Gorman said the officers initially entered “on the pretext of checking Mr. Marquis Sr.’s taxi problems,” an apparent reference to a taxi business in which Randy Marquis was involved, and asked, “Why do law enforcement officers lie to gain someone’s trust?”

Tarpinian told her that can enable them to get information they might not otherwise get. She also said the pretext was short-lived.

The justices too were concerned about the more than two-year time lapse from the initial charge to the trial.

Tarpinian said there were some delays in pre-trial motions and hearings as well as continuances. She also told the justices that Marquis was not in custody during that period.

The high court issues its opinion in writing, and those decisions are published Tuesdays and Thursdays on the court’s website.

Marquis had pleaded not guilty to all charges and opted against testifying at his trial at the Capital Judicial Center. He also declined to speak during the sentencing hearing in the same courthouse.

Jurors heard his voice only on a recording during an interview by investigators.

Kittredge and Dawn Ego, a forensic analyst with the Maine Computer Crimes Unit, were the only two witnesses who testified.

In his closing argument at Marquis’ trial, Hess argued that Marquis was unaware he had downloaded the images.

“When the detective ran the search program and these things popped up, (Marquis) was surprised,” Hess said. “He was genuinely surprised.”

In her closing argument, Tarpinian said Marquis, under the user name “BIG DADDY,” used a peer-to-peer file sharing program and deliberately searched for pornographic terms and downloaded those images to his computer.

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